The Millbury Franchise Agreement specifically states, at paragraph F: "You acknowledge the only consideration we receive from you ... consists of the Franchise Fee, the Royalty and performance of your other promises under this Agreement." See DB Structured Prod., Inc. v. Am. Home Mortgage Holdings, Inc. (In re Am. Home Mortgage Holdings, Inc.), 402 B.R. 87, 100 (Bankr.D.Del.2009) ("contracts are economically interdependent when the consideration underlying each contract supports the other contract, such that non-performance under one contract would constitute a failure of the consideration underlying the other contract"); IT Group, 350 B.R. at 179 (economic interdependence is "critical feature" of agreements where cross-default provisions are upheld; cross-default clause unenforceable where no evidence that contracts were "economically interdependent" or "intertwined") (citing UAL); UAL Corp., 346 B.R. at 469-70 ("courts have repeatedly refused to enforce cross-default clauses that attempt to link parallel contracts with unrelated consideration") (collecting cases); In re Adelphia Bus. Solutions, Inc., 322 B.R. 51, 60 (Bankr.S.D.N.Y. 2005) (cross-default provisions in separate leases for separate locations in same building were not enforceable to prevent assumption of one lease and rejection of the other where the leases were "not inextricably intertwined and

However, if the contract is not executory, it can be sold to a § 363 buyer like any other liability or asset. Cf. In re Am. Home Mortg. Holdings, Inc. , 402 B.R. 87, 94 (Bankr. D. Del. 2009) (explaining that § 363 "permits a debtor to transfer its rights and obligations under a non-executory contract"). In the case of a non-executory contract where only the debtor has material obligations left to perform, the contract is a liability of the estate, and if the buyer wants to buy it, the buyer is voluntarily assuming that liability.

“Under the Bankruptcy Code, if a contract is not executory, a debtor may assign, delegate, or transfer rights and/or obligations under section 363 of the Bankruptcy Code, provided that the criteria of that section are satisfied.” In re Boy Scouts of Am., 642 B.R. at 668 (quoting In re Am. Home Mortg., 402 B.R. 87, 92-93 (Bankr. D. Del. 2009) (emphasis in original)). The Insurance Policies are not executory contracts, id. at 668 n. 729, and no insurer argued otherwise.

"Under the Bankruptcy Code, if a contract is not executory, a debtor may assign, delegate, or transfer rights and/or obligations under section 363 of the Bankruptcy Code, provided that the criteria of that section are satisfied." In re Boy Scouts of Am. , 642 B.R. at 668 (quoting In re Am. Home Mortg. , 402 B.R. 87, 92-93 (Bankr. D. Del. 2009) (emphasis in original)). The Insurance Policies are not executory contracts, id. at 668 n. 729, and no insurer argues otherwise.

"Under the Bankruptcy Code, if a contract is not executory, a debtor may assign, delegate, or transfer rights and/or obligations under section 363 of the Bankruptcy Code, provided that the criteria of that section are satisfied." In re Boy Scout of Am., 642 B.R. at 668 (quoting In re Am. Home Mortg., 402 B.R. 87, 92-93 (Bankr. D. Del. 2009) (emphasis in original)). The Insurance Policies are not executory contracts, id. at 668 n. 729, and no insurer argues otherwise.

(Id. ¶ 7). This provision recognizes that, although an executory contract may be assigned to a buyer pursuant to section 365 of the Bankruptcy Code, a non-executory contract can be transferred to a buyer pursuant to section 363, and that the purchaser had reserved its rights to do so. (See A3183-84 (citing DB Structured Prods. v. Am. Home Mortg. Holdings, Inc. (In re Am. Home Mortg. Holdings, Inc.), 402 B.R. 87, 98 (Bankr. D. Del. 2009) (debtor may transfer "rights and obligations under a non-executory contract pursuant to § 363 of the Bankruptcy Code")). Spyglass removed nine (9) additional Investment Agreements from the November 8th Contract Notice and designated such Investment Agreements as "Excluded Contracts."

In order to ascertain that intent, courts often look to the factors considered by the Eleventh Circuit in In re Gardinier, 831 F.2d 974, 978 (11th Cir.1987). SeeIn re Indian River Homes, Inc. v. Sussex Trust Co., 108 B.R. 46, 49 (D.Del.1989) (adopting Gardinier in a case governed by Delaware law); In re American Home Mortgage Holdings, Inc., 402 B.R. 87, 95 (Bankr.D.Del.2009) (adopting Gardinier in a case governed by New York law). The factors considered in the Gardinier analysis are as follows: “(1) Whether the nature and purpose of the obligations are different; (2) whether the consideration for the obligations is separate and distinct; and (3) whether obligations of the parties are interrelated.”

First, several of the paragraphs in which Plaintiffs describe this strain of their fraud claim, (SAC ¶¶ 69–79), are lifted from the aforementioned complaint filed against Bank of America in California state court, ( Ronald Compl. ¶¶ 1–11.) Furthermore, at least a handful of Plaintiffs' allegations regarding FGC's business model, (SAC ¶¶ 227–31), are cribbed from a decision by the United States Bankruptcy Court for the District of Delaware, in which the court described the business practices of an entirely different lending institution, see DB Structured Prods. v. Am. Home Mortg. Holdings, Inc. ( In re Am. Home Mortg. Holdings, Inc.), 402 B.R. 87, 90–91 (2009). Literally hundreds of the paragraphs relevant to this claim, (SAC ¶¶ 232–488), are from a class action complaint in California—in this case, at least, filed against FGC, (Second Am. Consolidated Class Action Securities Compl. ¶¶ 1–348 (07–CV–5756 Dkt. (C.D.Cal.))).

Home Mortg., 402 B.R. 87, 92-93 (Bankr. D. Del. 2009)). In circumstances similar to this case, the court in Boy Scouts of Am., found that the Bankruptcy Code permitted the debtors to "transfer their property rights consistent with applicable state law."

Most of these policies do not have a readily apparent governing law provision.In re American Home Mortg., 402 B.R. 87, 92-93 (Bankr. D. Del. 2009) (emphasis supplied). The recognition of this common law contract principle appears to clash with the statement that a non-executory contract must be taken cum onere.